Memorandum by Sir William Nicoll
THE ESTABLISHMENT OF A SECOND CHAMBER IN
THE INSTITUTIONAL STRUCTURE OF THE EUROPEAN UNION
1. Proposals for a Second Chamber of the
European Union, composed of Members of National Parliaments, have
emanated from several quarters. The specifics of the different
schemes reflect the differing "finalities" which their
authors have in mind for the Union. In one version the Second
Chamber is an organ of a European Federation, in which it represents
the constituent States vis-a"-vis a European Federal
Government (the principle of the Bundesstaat). In others the Union
remains an order of States (Staatenbund) and the principal task
of the Second Chamber is to protect states' rights against encroachment
by the other central institutions, especially the Commission,
the directly elected European Parliament and the European Court
2. The States' Chamber of a Federation is
a distant vision. The alternative concept of the Second Chamber
is that it should act as one of the checks on what is conceived
to be the trend for power to pass from national governmental systems
towards Union institutions, or, more accurately, towards the institutions
of the European Community. This advocacy is usually linked to
the principle of subsidiarity.
3. The following section reviews the leading
proposals for a Second Chamber of the "checks and balances
4. The most fully worked out scheme was
put forward by the European Constitutional Group in 1993. The
ECG, which was multi-national was associated with the London-based
European Policy Forum, a think-tank which took a critical view
of the Community and Union. The Group's report was prepared in
the perspective of the 1996 IGC.
5. The ECG's proposals cover the whole field
of Union governance and include the adoption of a written constitution.
The proposals include the establishment of a two chamber legislative
process, with a new Chamber of National Parliamentarians. This
would better preserve the balance between collective action by
the Union and individual measures by the Member States. It would
be part of the constitutional defences against the growth of central
"The Chamber of Parliamentarians of national
parliaments would have a special role at the pre-legislative stage
in determining whether action was needed by the Union and in ensuring
that the proposed measures were in conformity with the constitution".
It would have 175 members, for 12 Member States.
6. The new chamber would have powers to
reject legislative proposals by a majority vote; to initiate legislation;
to review budget proposals and reject them, including line items;
to approve international agreements; and to approve the accession
of new Member states.
7. The Group suggest that the voting rights
(? the degree of members' independence) could be exercised by
the national parliament if it decides so in plenary session. Members
should serve for not more than five years. Membership would cease
if the individual his or her national seat or was otherwise recalled.
8. In 1995 the ECG's rapporteur, Frank Vibert,
brought out "Europe, a Constitution for the Millennium"i.
In it he discusses how constitutional oversight can be ensured.
He suggests (p177) two options. In one, national parliaments would
have the power to block proposed Union measures. In the other
a second Union chamber, composed of "representatives"
of national parliaments would act as rule keeping "senate".
Since on Mr Vibert's analysis, the directly-elected Assembly of
the Union has an in-built interest in measures being undertaken
collectively in Europe," in the final analysis the parliaments
of the Member States will be able to exercise an effective collective
voice only if Europe's constitution provides them with a formal
role in Union procedures" (p216). On the question of the
degree of independence of Second Chamber Members, the author envisages
that some might come with instructions from their parliaments.
Others might be given greater flexibility by their parliament
or parliamentary party (p218).
9. None of the foregoing proposals for a
Second Chamber as a constitutional watchdog found an echo in the
IGCs of 1996-97 or 2000.
10. Larry Siedentop's book, Democracy in
Europeii is a contribution to "the great constitutional debate".
He draws his inspiration from the American experience. His chosen
title is an evocation of de Tocqueville's Democracy in America.
He does not regard a federation as inevitable or even desirable:
the development may be to an association of sovereign states.
But, taking account of the distinctive political cultures and
forms of civic spirit in the countries of Europe he points to
the attractions of federalism, in which these conditions could
survive. The pre-condition is a European consensus, at present
lacking. "The establishment of a European Senate, charged
with overseeing that question and the work of a European court,
creating a common jurisprudence, could gradually help to create
such a consensus." (p231). The leading thought is that in
a federal system "the obstacles to central government acting
in certain spheres may be almost permanent . . . Federalism greatly
strengthens an awareness of the possibilities of legitimate conflict
within a political system." (p98). Siedentop is a convinced
supporter of the separation of powers. His book does not explain
why the European Parliament is not a sufficient counteracting
11. Speaking in Warsaw in October 2000iii
the Prime Minister joined in the discussion initiated by his European
colleagues about reform beyond the Treaty of Nice, which was at
the time approaching its conclusion. Mr Blair spoke of the need
for a "charter of competences" or "statement of
principles" to demarcate what should be done at European
level and what at national level. (It could also give insight
into what should be done at regional level).
12. Mr Blair continued:
"I also believe that the time has now come
to involve representatives of national parliaments more on such
matters, by creating a second chamber of the European Parliament.
A second chamber's most important function would
be to review the EU's work in the light of this agreed Statement
of Principles. It would not get involved in the day-to-day negotiation
of legislationthat is properly the role of the existing
European Parliament. Rather, its task would be to help implement
the agreed statement of principles; so that we do what we need
to at European level but also so that we devolve power downwards.
Whereas a formal Constitution would logically require judicial
review by a European constitutional court, this would be a political
review by a body of democratically elected politicians. It would
be dynamic rather than static, allowing for change in the application
of these principles without elaborate legal revisions every time.
Such a second chamber could also, I believe,
help provide democratic oversight at European level of the common
foreign and security policy" (p21).
13. The Prime Minister is thereby opposing
the proposal, already current, that the EU should possess a written
constitution, which would in his view restrict progressive and
necessary change. In place of relying upon jurisprudence to determine
what is proper to the Union and what to the Member States, he
prefers the political decision of serving parliamentarians. By
virtue of the decisions, the agreed principles could change. Although
the second chamber would not be responsible for co-decision on
legislation it is inherent in the job description that it would
be able to block, or propose amendments to, legislative proposals
which its Members considered to be inconsistent with the charter
of competences. The context and the Federal Trust interpretation
is that the second chamber would be the protector of states' rights
14. The Prime Minister's reference to the
CFSP is a reminder that the European Parliament has minimal involvement
in that Pillar of the Union. In this function, the second chamber
would not be taking position on matters of states' rights but
on issues of foreign policy, probably in an advisory capacity.
15. Since Lord Brittan can explain his proposals
unaided they are only briefly summarised here. In A Diet of Brusselsiv
and elsewhere he suggests the setting up of a Committee of National
Parliaments to scrutinise the work of the Council and the Commission.
In this way, subsidiarity would be enforced, the legal basis of
measures could be challenged, laws taking the EU into new territory
would be scrutinised and laws whereby governments cede competence
to European institutions would be examined.v The gains would be:
national parliamentarians would be
more fully educated about the Union;
democratic legitimacy would be increased;
voters would be reassured that power
over their lives is not ebbing abroad.
A half-way house: joint meetings
16. In recognition of the reality of the
problem of the relationship between national parliaments and the
EP, there have been suggestions for bringing them together in
some form of joint debating forum. The general idea goes back
as far as January 1963, in the days of the non-elected European
Assembly. In that year there was a meeting between the President
of the Assembly and his counterparts in the national parliamentsvi.
It was a dead end. In 1979, Laurent Fabius, then President of
the Assemblee nationale and an MEP, organised the first meetings
between elected MEPs and representatives of the bodies in national
parliaments which specialise in European affairs (from which the
French acronym COASC).vii The title in English is Conference of
European Affairs Committees (CEAC).
17. In 1990 at the suggestion of President
Mitterrand and Prime Minister Gonzales, representatives of the
EP and national parliaments met in Rome. In their Final Declaration
the participants insisted on tighter democratic control of the
activities of the Community. They called for reinforced co-operation
among themselves, including the holding of joint conferences,
notably at the time of IGCs.
18. In the framework of the Maastricht IGC,
France went further. It proposed a Congress of MEPs and members
of national parliaments or regional assemblies meeting three times
a year jointly with the President of the Council and the President
of the Commission. This "Conference of Parliaments"
should be consulted on matters pertaining to the CFSP and to the
CJHA; and on the political conditions for the application of the
principle of subsidiarity. This proposal did not go down well
with the EP or with the majority of Member States. Heavily qualified
it became Declaration 14 annexed to the Maastricht Treaty, which
invites the EP and national parliaments to meet as necessary to
be consulted on the main features of the EU, without prejudice
to the powers of the EP and the rights of national parliaments.
The Declaration has no binding force.viii
19. The IGC which gave rise to the Treaty
of Amsterdam was prepared by a Reflection Group of representatives
of the Member States. In a single sentence the Group rejectedwhich
must have been unanimouslythe creation of a second chamber
composed of national parliamentarians (Final Report, para 95).
By a majority it also disfavoured the convocation of the Conferences
of Parliaments as provided for in Masstricht Declaration 14. But
it approved of COSAC, while having doubts about institutionalising
it further (para 93). In a separate discussion it suggested that
COSAC would facilitate the exchange of parliamentary information
on the CJHA (para 53).
20 The upshot was the final Protocol (which
is legally binding) in the Amsterdam Treaty. It mandates COSAC
make any contribution it deems appropriate
in particular on draft legal texts:
examine any legislative proposal
or initiative in relation to the establishment of the area of
freedom security and justice;
address to the EP, Council and Commission
any contribution it deems appropriate on legislative activity,
notably in the field of subsidiarity and of questions regarding
As a participant, the Committee will have its
own appreciation of the work of COSAC.
21. The Treaty of Nice contains no substantive
reference to relations between the Union and national parliaments.
But in Annex IV the Member States agreed to open a debate on the
future of the Union. Among the four questions which are the preliminary
agenda for the debate is: "the role of national parliaments
in the European architecture." The Member States commented
that they recognised:
"the need to improve and monitor the democratic
legitimacy and transparency of the Union and its institutions,
to bring them closer to the citizens of the Member States."
This is European Council shorthand for concern
about the lack of appeal of the Union throughout its 15 members.
22. The different advocates of a second
chamber point to better supervision of the work of the Union,
to a richer information flow to national politicians and their
electors, to the prospect of improved public confidence and through
better definition of what the Union can do and what not, to stronger
public support for what the Union does in its thus defined field.
The watchwords are closeness, transparency, legitimacy. In some
minds these qualities help to shape the consensus in favour of
further integration. In others they reaffirm the authority of
the Member States. Out and out federalists and doubters converge.
In a Federation two chambers and co-decision between them are
a virtual necessity since one alone, representing the unitary
side of government, could act to transfer all power to the centre
and overturn the Federal constitution.ix The opponents of federalism
need something to arrest the creeping growth of central power.
23. This leaves out of the argument integrationists
who fear that the development of the Union will be retarded if
too much prominence is placed on states' rights and not enough
to the build up of the Union. In this sense a series of commentators
has opposed the creation, at least at this stage, of a second
chamber. Juliet Lodge, a noted academic, in her review of Lord
Brittan's suggestions, argues that
"adding another layer to the existing supranational
institutions would not enhance efficient or open government. It
would increase complexity and make it even less intelligible and
transparent . . . A Euro-Senate should be resisted" (Op cit,
She supports arrangements like what are called
above the half-way house. She calls upon national parliaments
to enhance their scrutiny and to support the EP in its continuous
effort to share power.
24. David Coombsx agrees that the EP should
make coalitions with national parliaments. To him it "makes
no sense" to give national parliaments additional representation.
He is convinced that a systematic comparison of the EP before
and after direct elections would show that "not a lot"
would be gained by having a nominated as well as an elected parliament.
25. The Federal Trustxi rejects reversion
to an appointed parliamentary body. It considered that the Community's
legislative process was already complicated enough, without the
added complication of a third chamber [the Council being regarded
as one]. Its members would be part-timers whose attention would
be engaged elsewhere. Like Ms Lodge it believes that MPs would
be better occupied holding ministers to account.
26. Andrew Duff (at the time Director of
the Federal Trust, now an MEP) contendsxii that national parliaments
cannot share with the European Parliament in the routine law-making
of the EU. "That way lies certain immobility". He judges
that little changed as a result of the attentions of COSAC.
The present author's own conclusions
27. When in 1978 the late Edmund Dell and
his fellow "Sages" reviewed the then Community for Heads
of State and Government, they described the ways of the Community
as "heavy". Watchers of the institutional interaction
would agree. Expanding membership does not make the processes
any lighter. Within each of the branches of the legislature it
takes much time and effort for the nub of agreement to form; and
more time for the two nubs to come together. To add another institution
to the exchanges could only prolong the deliberation and threaten
to reduce the much despised common denominator of agreement yet
further. This is the price which a second chamber would impose
and which cannot be wished away.
Practical issues and Rules of Procedure
28. If the price is worth paying some practical
problems would fall to be overcome. Consistently with the Union's
unwillingness to intervene in domestic house-keeping the choice
of the method of selecting Members of the Chamber of Parliaments
would be reserved to national parliaments themselves, as also
the question of whether they are delegates or Burkian independents.
The Chamber would be responsible for drawing up its own rules
of procedure and its own management. There would be some provision
for dialogue with the EP and with the Commission and Council Presidency.
With modern technology it is imaginable that the location of the
Chamber could be in cyberspace, with members participating in
debate via satellite communication.
29. The case for or against does not hinge
on whether the dual mandate is workable. In the appointed assembly
it was generally held to be an impediment. But the workload of
the second chamber would not be overwhelming if it were confined
to subsidiarity scrutiny of say, 50-60 legislative proposals a
year, shared out among several committees, along with a periodic
vote on a foreign policy motion. Ex hypothesi the Members
of the Chamber would have a particular interest in European affairs,
conceivably as members of relevant committees in their own houses.
A second chamber endowed with revising functions would be a different
Is the second chamber viable?
30. All measures which bring the Union closer
to the citizens and strip it of its mysteriousness are to be welcomed.
It is tempting to think that a chamber which projected an image
of preventing power from slipping away would inspire public confidence.
But power does shift, sovereignty is "pooled" and the
image is distorted if it conveys the impression that the Union
is largely a matter of holding back the other central institutions.
It is not questioned that electors feel closer to their own politicians
than to MEPs, but it is also beyond question that across the Union
the voters display morosity towards their parliamentarians, their
parties, their parliaments and the machinery of their government.
It is too facile to conclude that Europe would look better if
better known personalities were involved.
31. The spectacle would be unedifying if
the business of the Union were marked by running conflict between
the three legislating bodies: EP, Chamber and Council (and its
masters in the European Council). It is unsafe to foresee that
the tensions would always be creative. Conflict is inevitable:
the Second Chamber, zealous of states' rights, could be a roadblock
which the other bodies, as well as the Commission, would spend
time and effort to circumvent. (The Council majority is not necessarily
a reflection of the Chamber majority. If it were, the chamber
would be redundant.)
32. Another conflict could be between political
judgement and judicial verdict. If, as is proposed, one possible
outcome of the next set of reforms is a written constitution,
the natural place for it to be interpreted is the Court.xiii A
less formal "charter of competences" would not be immune
from judicial review of decisions taken under it instigated by
parties, including other institutions, which believed the decision
to be flawed.
33. The Union has the objective of making
itself, its procedures and its acts simpler. A proposed legislative
measure takes the following path:
Commission proposal, published, frequently
treated in newspaper columns as if it were already law.
Opinions given by the Economic and
Social Committee and the Committee of the Regions.
Opinon at first reading by the EP,
again frequently described as law.
On occasion, revised proposal by
Common position of the Council.
Second reading by the EP.
The process is not in fact excessively complicated
but taken with the large number of different rules (no consultation,
consultation, co-operation, co-decision, assent, Council unanimity,
Council QMVthree-legged, post-Nice, the budget "shuttle")
Union law-making has acquired a Byzantine reputation. Putting
another institution's input into the process is not simplification,
contrary to the Declaration on the Future of the Union annexed
to the Nice Treaty.
34. If the Second Chamber is to have a role
in the application of the CFSP (Prime Minister) or the CJHA (Reflection
Group, on COSAC), this is tantamount to a declaration of war on
the EP, which has consistently demanded that it should not be
excluded from these Pillars.
35. The Committee has asked whether a Second
Chamber could play a role in reducing the democratic deficit.
It will not touch but will highlight the absence of democracy
from the work of the ECB. It will not strengthen and may even
prejudice the democratic credentials of the Council and the European
Council. It has less obvious democratising effect than the introduction
of co-decision and its extension, the submission of the President
of the Commission and the Commissioners to EP approval, the function
of the EP Ombudsman, and the right of public access to information.
36. My conclusion is that the case for a
Second Chamber fails. A Second Chamber designed to uphold states'
rights must likewise be redundant if at Laeken in December 2001
the European Council reaches agreement on "how to establish
and monitor a more precise delimitation of competences between
the European Union and the Member States, reflecting the principle
of subsidiarity." (Annex IV to the Treaty of Nice). Simplification
and legal certainty require that the precise delimitation be justifiable,
not interpreted by a political process.
i Dartmouth Publishing, ISBN 1 85521 521 7.
ii Allen Lane, Penguin Press, 2000, ISBN 0 713-99402-9.
iii The text of the speech is in Superpower
not Superstate? Federal Trust European Essay no 12, November 2000,
ISBN 1 90403 25 1.
iv Little Brown and Co, 2000, ISBN 0 316 85402
v As analysed by Juliet Hodge in Crisis or Opportunity,
Centre for EU Studies, University of Hull, 1995.
vi Sir Barnett Cocks, the European Parliament,
HMSO, 1973, SBN 11 700190 2*, p28.
vii Corbett, Jacobs and Shackleton, The European
Parliament, Cartermill Publishing, 1995, ISBN 1 86067 001 6, p268.
viii For a fuller treatment, see Cloos, Reinesch,
Vignes and Weyland, Le Traite de Maastricht, Bruylant, Brussels,
1993, ISBN 2 8027 0852 X, p407.
ix As discussed by KC Wheare in Federal Government,
OUP, 1946, p36.
x Seven Theorems in Search of the European Parliament,
Federal Trust, 1999, ISBN 0 901573 70 1, pp57-58.
xi The IGC, 1996 Paper no three, ISBN 0 90157
351 3, p11.
xii The Treaty of Amsterdam, 1997, ISBN 0 901
57367 1, pp 176, 177, 178.
xiii Wheare, op cit, p62.